HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diogense Fortuno

Applicant

-and-

Chip Reit #23 Operations Limited Partnership, Sandalwood Suites Hotel (now SilverBirch Hotels & Resorts Limited Partnership) and Corinne Oatman-Howell

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: September 25, 2009

Citation: 2009 HRTO 1544

Indexed as: Fortuno v. Chip Reit #23 Operations

AppearanceS BY

) U-Sheak Koroma,

Diogense Fortuno, Applicant ) Cecil Norman and

) Mareia Channer,

) Representatives

Chip Reit #23 Operations Limited Partnership, )

Sandalwood Suites Hotel (now SilverBirch Hotels ) Kathryn L. Meehan,

& Resorts Limited Partnership) and - ) Counsel

Corrinne Oatman Howell, )

Respondents )

[1] This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was treated differently in the course of and then terminated his employment on the basis of his race, place of origin, ethnic origin and ancestry.

[2] A Case Resolution Conference (“CRC” or “hearing”) was held on May 12, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. At the hearing, I heard testimony from the applicant, the personal respondent, and Lia Niemi, Manager of Human Resources Services during the relevant time, Vijay Pahjua, Director of Sales and Marketing, and, via teleconference, Mark Medland, Vice President of the Ontario Region at the relevant time for this Application.

PRELIMINARY MATTER

[3] At the outset of the hearing, the applicant’s representative advised that he intended to a call a witness who was en-route to the Tribunal. The respondents objected on the basis that the applicant had not informed the Tribunal or the responding parties, until the morning of the hearing, of his intention of calling any witnesses. After determining the proposed testimony would not have added any significant direct evidence or anything different than that which was expected from the applicant’s testimony, I denied the applicant’s request to allow his witness to testify. In my view, since the proposed testimony was not significant, I found that the prejudice arising from the delay and surprise to the responding parties outweighed its limited benefit to the applicant.

THE FACTS

[4] The applicant self-identifies as Philippino and is from the Philippines. In March 1997, the applicant commenced his employment as a full-time house person with the corporate respondent (the “hotel”). The hotel is located near Pearson International Airport in Toronto. In 2002, the hotel decided to implement a bus shuttle service in order to attract customers flying in and out of the airport. As a result of this decision, the applicant was offered and accepted the position of shuttle bus driver. The service was limited to the applicant’s working hours; four hours in the morning and four hours in evenings on weekdays.

[5] The applicant states he was consistently praised for his excellent work by various supervisors and managers although he conceded he had been warned on one occasion for breaching the hotel’s human rights policy after he made derogatory comments about a co-worker with a disability.

[6] However, after the personal respondent commenced employment as General Manager in September 2007, she engaged in a process of singling out racialized employees, especially those that worked the front desk, including the applicant, and subjecting them to differential treatment which poisoned the workplace. For example, the personal respondent would not say “hi” or “hello” and treated him with a lack of “respect”.

[7] While noting that the personal respondent said she wanted to change the face of the hotel, which he inferred was a reference to the racialized employees who worked at the front desk, the applicant confirmed that he, at no time, heard the personal respondent make any discriminatory comment.

[8] The applicant testified that the personal respondent allowed customers to “scream” at “visible minorities” at the front desk about the quality of the hotel service. There is no evidence the personal respondent was present at the time or made aware of these incidents. The applicant confirmed, and the respondents’ witnesses corroborated, that he did not bring his concerns about incidents of customer abusiveness towards staff, especially racialized staff, to the attention of either the personal respondent or other members of management.

[9] The applicant alleges that as a result of the personal respondent’s actions, an atmosphere of fear developed causing racialized employees working at the front desk to fear for their jobs and for some to quit as a result of it. He agreed, however that a racialized co-worker, E, did not lose her job but instead was promoted to a senior front desk position after the applicant left. Additionally, of the nine employees who currently work at the front desk, eight are racialized persons.

[10] On September 18, 2007, the applicant was informed that the hotel was outsourcing its shuttle bus service and as result his job would be made redundant, effective October 15, 2007. The applicant alleges he was informed that a part-time porter position was available and that he would have the first opportunity to secure the position. He refused the position and left the hotel in late October. He later discovered that the porter position was not posted at all.

[11] The respondents state that, after recognising a need for extended shuttle service hours and after obtaining bids from third-party contractors, the hotel determined it would be more cost effective to outsource its shuttle service rather than operate and extend their in-house service. The personal respondent and Mr. Medland testified with respect to this point. The hotel’s shuttle bus service was limited from Monday to Friday from 6:00 a.m. until 10:00 a.m. and 5:00 p.m. to 9:00 p.m. In reviewing the hotel’s operations, shortly after she began her employment as General Manager, the personal respondent attempted to determine how to best serve new or existing clientele that required a shuttle bus to and from the airport but outside the hotel’s established service hours. The options essentially became: 1) extending the hours of the hotel’s existing in-house service, by hiring more drivers or 2) contracting the entire service out to a third party. The records produced by the respondents confirm outsourcing the shuttle bus service permitted the hours of service to be extended at a lower cost.

[12] As a result, the applicant’s position was made redundant solely for business considerations. Because the hotel was generally satisfied with the applicant, he was offered a part-time porter position. They agree the applicant refused the position. Since the porter position was created specifically for the applicant in order to retain his services, the job was not posted after he declined it.

[13] The applicant agreed he knew the hotel had a human rights policy and that he might have complained about his concerns using it. He agreed he did not make any complaints in relation to that policy during his employment with the hotel.

ANALYSIS

[14] The applicant was unable to provide any direct evidence that he was terminated because of his race, place of origin, ethnic origin and ancestry. However, it is not disputed that discriminatory actions are often by their very nature, actions which can be incapable of direct proof. Thus, it often becomes necessary to infer discrimination from the conduct of the individual or individuals whose conduct is in issue.

[15] For the reasons set out below, I am not satisfied that such an inference can be drawn based on the evidence before me.

[16] In my view, the evidence persuasively supports that the hotel’s shuttle bus service, and thus the applicant’s job was eliminated as a result of business consideration and that the applicant’s race, place of origin, ethnic origin and ancestry were not factors in that decision.

[17] The applicant submitted that the part-time porter position was offered in a manner as to be structurally unacceptable to him. The fact that it was never posted was also evidence, he alleges, that it was a sham job offer and that the hotel had no intention of retaining him. I, however, am satisfied the respondents made the offer in order to retain the applicant. The position was not posted due to his refusal to consider it.

[18] The applicant clearly believes that his dismissal was the result of the personal respondent’s attempt to rid the front desk of racialized staff. However, the majority of the front desk staff were at all material times, racialized persons. This continues to the present.

[19] I am not satisfied there is any reliable evidence that the personal respondent made discriminatory comments about racialized staff or was aware of or permitted hotel customers to do so. The applicant agrees he did not bring these concerns to that attention of any member of the hotel management.

[20] The applicant failed to raise his concerns about the personal respondent at any time with hotel management although aware of the hotel’s human rights policy, and more importantly, personally aware that the hotel would take steps to enforce its policy. Significantly, he could not explain why he made no effort to complain or rely on the human rights policy during the meeting when he was informed of his job’s redundancy.

[21] In all the circumstances, after considering all the evidence I am not satisfied the Applicant can succeed. For all these reasons the Application is dismissed.

Dated at Toronto, this 25^th day of September, 2009.

“Signed by”

Jim Dimovski

Member